Of floors and ceilings
The defendant pleads guilty to firing a gun into a house,
which carries a prison term of 5 to 10 years.
If the judge finds by a preponderance of the evidence that the crime was
committed with a racial bias, he can add anywhere from an additional 1 to 5 years
to the sentence.
The defendant pleads guilty to firing a gun into a house,
which carries a prison term of 5 to 10 years.
If the judge finds by a preponderance of the evidence that the crime was
committed with a racial bias, the minimum sentence he can impose is 7 years.
Is there a difference between those two situations? Back in 2000, in Apprendi
v. New Jersey, the Supreme Court held that the first was impermissible;
allowing the judge to increase the sentence beyond what it otherwise would be based
on findings he made violated a defendant's 6th Amendment right to jury
trial. Two years later, in Harris
v. US, the Court held that the
second scenario was permissible: since
the finding affected only the minimum sentence,
not the maximum sentence, there was
no violation of the 6th Amendment.
On Monday, the Supreme Court in Alleyne
v. US held that this didn't make sense, and overruled Harris.
Alleyne had been charged with using a firearm in a crime,
which allows an additional prison sentence up to life, and a mandatory minimum
of five years. But that mandatory minimum
becomes seven years if the firearm is "brandished," and ten if it's
discharged. The jury had found Alleyne
guilty of the offense; the judge imposed the seven-year minimum because he
agreed with the presentence report's determination that Alleyne had brandished
the gun. (This was actually the precise
factual situation presented in Harris.)
It's not a clear call that this violates Apprendi, as reflected by the 5-4 split
in the decision. Harris was based on the distinction between a statutory ceiling and
a statutory floor: Apprendi was directed at the situation where the maximum sentence was exceeded. (Blakely
v. Washington later clarified Apprendi
by ruling that the "statutory maximum" was not necessarily the maximum
sentence specified by the statute, but the maximum that could be imposed solely
on the basis of facts found by a jury or admitted by the defendant, other than
a prior conviction). The majority (also
five members of the Court) in Harris found
that increasing the mandatory minimum didn't
violate Apprendi, because the maximum
sentence wasn't affected: although the
judge had to give Harris a sentence of 7 years, as opposed to 5, he could've
given him anything, including life. Harris also dealt extensively with the
difference between sentencing "elements" and sentencing "factors," concluding
that the right to jury trial applied only to the former, and that whether a
firearm was brandished was a factor, not an element.
But you say tomayto, I say tomahto: the net result is that a defendant is doing
more time than he otherwise could, solely because of facts found by a judge by
a preponderance of the evidence, rather than by a jury beyond a reasonable
doubt. Thomas' opinion for the majority
(the "liberal" bloc joined in) observed that "a fact triggering a mandatory
minimum alters the prescribed range of sentences to which a criminal defendant
is exposed," and that "it is impossible to dispute that facts increasÂing the
legally prescribed floor aggravate the punishment," the same as facts which increase
the maximum penalty. The bottom line is
simple: "When a finding of fact alters
the legally prescribed punishment so as to aggravate it, the fact necessarily
forms a constituent part of a new offense and must be submitted to the jury."
The interesting vote here was Breyer's. He's long been an opponent of the Apprendi line, probably because he
foresaw that it would result in the Court's decision in Booker v. US, which rendered the Sentencing Guidelines advisory
instead of mandatory; Breyer was one of the architects of the Guidelines. He concurred in Harris, although noting there the logical inconsistencies with Apprendi.
Those inconsistencies became too much; he votes in Alleyne to overrule Harris, while still expressing his disagreement with Apprendi.
Go figure.
Given that sentencing is the most important aspect of the
criminal justice system, it's hard to overstate the significance of Apprendi and its progeny. Alleyne
represents a significant extension of that doctrine. Minimum mandatory sentences have become the
focus of great criticism. As Breyer has
noted, they sabotage the very idea of the Sentencing Guidelines -- they're
based not on empirical studies of the appropriate relation between crime and
punishment, as the Guidelines are (at least in theory), but are instead little
more than legislators' attempt to appear tough on crime. They also bestow extraordinary power on
Federal prosecutors, with the result being that prosecutors, not judges, fix
the punishment by deciding which offenses to charge. Alleyne
won't solve the problems with mandatory minimums, but at least it might mitigate
the damage that they do.
* * * * *
I'm traveling back to Pennsylvania this weekend to attend my 45th high school reunion. Haven't seen or talked with anybody back there in 25 years. Boy, that'll be a time. Anyway, no Briefcase tomorrow or on Monday. See you back here on Tuesday.
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